Katakouzinos v Roufir Pty.Ltd. [1999] NSWSC 1045

Katakouzinos v Roufir Pty.Ltd. [1999] NSWSC 1045

The temporary easements were reasonably necessary because the approved development as planned required the scaffolding and access, while redesign would cause significant loss of residential accommodation, delay, cost and financial marginality. Subject to conditions addressing fire safety, insurance and protection of the defendant's property, the use would not be inconsistent with the public interest. The defendant's business loss could be adequately compensated at $300 per day, and the plaintiffs had made all reasonable attempts to obtain the easements because the defendant insisted on resolution of other disputed damage claims before considering access. The Court therefore indicated that...

Jurisdiction
Australia
Judgment Date
20 October 1999
Procedural Posture
Application for Temporary Easements Under S.88 K of the Conveyancing Act / Judgment After Hearing; Matter Stood Over for Short Minutes of Order
Outcome
The Court indicated that temporary easements should be granted on conditions, including compensation of $300 per day from grant of the easement to five weeks after the scaffolding is finally removed, and directed the parties to return with short minutes.
Legal Topics
['easements' 'creation of Easements' 'temporary Construction Access' 'reasonable Necessity' 'public Interest' 'compensation Under S.88 K' 'costs']
['property Law' 'equity'] ['easements' 'creation of Easements' 'temporary Construction Access' 'reasonable Necessity' 'public Interest' 'compensation Under S.88 K' 'costs']

Case Brief

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Procedural Posture

Application for Temporary Easements Under S.88 K of the Conveyancing Act / Judgment After Hearing; Matter Stood Over for Short Minutes of Order

Legal Issues

  1. 1 ["Whether the easements sought were reasonably necessary for the effective use or development of the plaintiffs' land." 'Whether use of the land in accordance with the easements would be inconsistent with the public interest.' 'Whether the defendant could be adequately compensated for any loss or other disadvantage arising from imposition of the easements, and the amount of compensation.' 'Whether all reasonable attempts had been made by the plaintiffs to obtain the easements.' 'Whether the Court should exercise its discretion to grant the easements and on what conditions.']

Ratio Decidendi

The temporary easements were reasonably necessary because the approved development as planned required the scaffolding and access, while redesign would cause significant loss of residential accommodation, delay, cost and financial marginality. Subject to conditions addressing fire safety, insurance and protection of the defendant's property, the use would not be inconsistent with the public interest. The defendant's business loss could be adequately compensated at $300 per day, and the plaintiffs had made all reasonable attempts to obtain the easements because the defendant insisted on resolution of other disputed damage claims before considering access. The Court therefore indicated that...

Court Disposition

The Court indicated that temporary easements should be granted on conditions, including compensation of $300 per day from grant of the easement to five weeks after the scaffolding is finally removed, and directed the parties to return with short minutes.

Orders

  • ['The plaintiffs are to serve draft short minutes on the defendant by 5pm today.' "The matter is stood over to 2 o'clock on Thursday, 21 October with a view to making the orders then."]